Charter Challenges at Extradition Hearings

• Author: Nancy L. Dennison/Seth Weinstein
• Pages: 185-209

185

Charter

Challenges at

Extradition

Hearings

9

I. The Limited Charter Jurisdiction of an Extradition Judge .......... 186

II. Procedural Issues ......................................... 187

III. Applicable Charter Provisions at Extradition Hearing ............ 188

A. Section 8 .......................................... 188

B. Sections 10(a) and 10(b) ............................. 191

C. Section 24(2) ....................................... 191

D. Challenges to Jurisdiction ............................. 192

E. Section 7 .......................................... 194

IV. Abuse of Process ......................................... 194

V. Test for Abuse of Process ................................... 196

A. Nexus Requirement ................................. 197

B. Abuse Affecting Fairness of Hearing .................... 199

C. Residual Category ................................... 200

D. Crown Misconduct .................................. 203

E. Foreign Misconduct ................................. 205

F. Delay ............................................. 207

Appendix 9.1 Charter Issues That a Committal Judge Has

Jurisdiction to Consider ....................... 209

186 Prosecuting and Defending Extradition Cases: A Practitioner’s Handbook

I. The Limited Charter Jurisdiction

of an Extradition Judge

An extradition judge must ensure that the committal hearing is the product of a fair

process and that the hearing itself is conducted in accordance with the principles of

fundamental justice.1 To do so, an extradition judge has jurisdiction to apply the Char-

ter2 and grant remedies. Indeed, it is the ability of committal judges to grant Charter

remedies that distinguishes the extradition hearing from a domestic preliminary hearing.

The jurisdiction to confer Charter remedies is set out in section 25 of the Extradition

Act,3 which states:

For the purposes of the Constitution Act, 1982, a judge has, with respect to the functions

that the judge is required to perform in applying this Act, the same competence that that

judge possesses by virtue of being a superior court judge.

Section 25 does not, however, impart exclusive jurisdiction to the extradition judge

to rule on all constitutional issues. Rather, the judge’s discretionary power is limited to

issues that pertain directly to the circumscribed issues relevant at the committal stage

of the extradition process.4 As explained by the Supreme Court of Canada in Cobb:

[A]lthough the committal hearing is not a trial, it must conform with principles of pro-

cedural fairness that govern all judicial proceedings in this country, particularly those

where a liberty or security interest is at stake.…

The extradition judge is therefore competent to grant Charter remedies, including a

stay of proceedings, on the basis of a Charter violation but only insofar as the Charter

breach pertains directly to the circumscribed issues relevant at the committal stage of

the extradition process.…

Section 7 [of the Charter] permeates the entire extradition process and is engaged,

although for dierent purposes, at both stages of the proceedings. … At the committal

stage, the presiding judge must ensure that the committal order, if it is to issue, is the

product of a fair judicial process.

The Requesting State is a party to judicial proceedings before a Canadian court and

is subject to the application of rules and remedies that serve to control the conduct of

parties who turn to the courts for assistance. Even aside from any claim of Charter protec-

tion, litigants are protected from unfair, abusive proceedings through the doctrine of

1 United States of America v Ferras; United States of America v Latty, 2006 SCC 33, [2006] 2

SCR 77.

2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being ScheduleB

to the Canada Act 1982 (UK), 1982, c11 [Charter].

3 Extradition Act, SC 1999, c18.

4 United States of America v Kwok, 2001 SCC 18 at paras5, 67, [2001] 1 SCR 532.